Hi Ho, Hi Ho, off to the ICO we go… (more on RASs and transparency)

[Note: subsequent to writing this post, Croydon Council disclosed their RAS algorithm to me. Accordingly, the ICO discontinued their investigation of my complaint as the matter was resolved]

An interesting opportunity has arisen to test whether local authorities must disclose their RAS algorithms under the Freedom of Information Act… The issue of RASs and transparency is especially timely given the Supreme Court will issue its decision due in KM v Cambridgeshire County Council on Thursday 31.

I’ve previously blogged here about the importance of transparency in the calculations underpinning local authority Resource Allocation Systems (RASs), which are used to determine the ‘indicative’ cash value of a personal budget from which care services can be purchased by a local authority or given as a direct payment. I’ve written here about the obstacles I encountered last summer when trying to get local authorities to disclose the workings of their RAS, and I’m pleased to say that each and every local authority who refused to disclose the algorithm at that time did eventually share it with me. Then this year, preparing for a research paper on RASs I made a second tranche of 20 requests for details of local authority RASs under the Freedom of Information Act 2000 (FOIA). This time around all but two local authorities disclosed the underpinnings of their RAS (if they were using one – lots had abandoned the RAS approach, it turned out). I wrote here about the reasons given by Hackney Council and Croydon Council for refusing to disclose their RAS algorithm. In short, Hackney refused because they didn’t know what it was – they’d bought it off FACE, and they didn’t actually know what the algorithm itself said because FACE hadn’t told them. Croydon initially refused to disclose its RAS and gave reasons that initially looked rather like a s36 FOIA exemption, that it would prejudice the conduct of public affairs. However, I sought a review of this refusal, and asked them to clarify which exemption under the FOIA they were applying. Their response was quite surprising, in short they applied an exemption that it would prejudice their own commercial interests – here’s their reasoning in full:

The requested information is exempt from disclosure under the exemption provided in Section 43 of the FOIA. This exemption applies to information which if disclosed would, or would be likely to, prejudice the commercial interests of any person, including the Council.

In deciding whether to apply the aforementioned exemption the Council is expected to balance the public interest test in withholding the information against the public interest in disclosing the information. The requested information is considered, by the Council, to be commercially sensitive as its disclosure would, or would be likely to, prejudice the commercial interests of the Council, as the Council is negotiations with our social care software provider, regarding the integration of the Council’s RAS solution in their software system.

Once this has been achieved the functionality in the software combined with the technical formulas in our RAS solution will be extremely attractive to other software users. The RAS forms an integral part of our Swift Financials development which the Council is hoping to attract commercial interest in.

We are also in discussions with our social care software supplier and other local authority product users around joint-working to develop the functionality necessary to integrate our RAS into Swift. This could involve Croydon off-setting significant development costs that would otherwise need to be incurred by sharing expertise (i.e. the formulas with accompanying explanations). Should the precise series of technical formulas that are used to translate assessment information into an indicative budget be fully disclosed at this stage, it would render the commercial potential of this complex developmental work essentially worthless.

Therefore to provide you with the requested information would significantly hinder the Council’s commercial interests as the Council would not be able to benefit as described above from the commercial use of the RAS and this would result in the Council losing a potential income source which could be used to develop services for the direct benefit of service users.

This commercialisation of RASs is looking to be a growing issue in terms of transparency, and so in a way its actually quite convenient that Croydon applied an exemption along these lines because we can now test it by complaining about their refusal to disclose at the Information Commissioner’s Office (ICO). It was annoying that Hackney couldn’t disclose their RAS algorithm, but there wasn’t much use complaining to the ICO because if they don’t hold the information, they ICO can’t make them disclose it. But Croydon do hold the information, and because they’re hoping to profit from it in the future, they’ve refused to share it in case they can’t then sell the algorithm. I’ve sent my complaint to the ICO today, in the interests of transparency I’ve put a bundle containing the whole history of our correspondence in a public dropbox, here (I haven’t put the complaint form because its got my mobile number on it). Here is the letter I wrote to the ICO to explain why I felt that notwithstanding Croydon Council’s commercial interests, it was in the public interest to disclose the algorithm underpinning their RAS:

Dear Information Commissioner,

I attach this letter containing supporting information for the complaint form I have submitted to you regarding Croydon Council’s refusal to disclose details of their Resource Allocation System (RAS). Croydon applied a s43 Freedom of Information Act 2000 (FOIA) exemption, stating that to disclose the details of their RAS would prejudice their commercial interests. It is my view that the public interest in maintaining the exemption does not outweigh the public interest in disclosing the information, and thus Croydon should publish details of their RAS subject to s2(2) FOIA. In this letter I would like to outline some of the reasons why I feel it is in the public interest to disclose the workings of their RAS.

What is a RAS?

A RAS is a system for producing an ‘indicative’ personal budget for users of local authority adult social care services. It works by converting scores inputted through an assessment questionnaire into a cash value for a personal budget. Although this value does not rigidly determine the final budget that will be applied to a person’s care services, it is meant to give a ‘ballpark figure’ from which professionals and social care service users begin care planning. RASs were developed initially by a national charity called In Control[1] and they stated that ‘The rules of the RAS must be simple and open and understood by local people.’[2] Much of the early development literature emphasized that RASs must be clear and transparent. For example, guidance for local authorities from the Association of Directors of Adult Social Services (ADASS) on RASs emphasized the importance of transparency in RASs and stated:

Even when budgets are under pressure, it is important to make the design of the RAS transparent so that people can understand the calculations and see how these factors have been taken into account… The RAS should be published on the council’s website in a user-friendly format.[3]

Why is transparency so important in relation to RASs?

I have successfully requested the RAS algorithms from over 13 local authorities. Croydon is only the second I have encountered who [is both operating a RAS and] has continued to refuse disclosure[4]. The responses I received suggest that RASs vary enormously in how they distribute resources. Some RASs apply a “cost abatement multiplier”, whereby a person’s budget will initially be set at a value which is lower than a person with a similar ‘points profile’ in the cases the RAS was trained on. This is often to reduce overall expenditure. Some RASs apply a ‘social capital deflator’ which reduces the value of a personal budget according to whether or not a person lives with family members. Some social capital deflators are extremely crude and give anybody who lives with family less than half of what a person living alone would receive – regardless of how much support family are willing and able to give in reality. Some RASs – not Croydon’s, according to information they did share – generate different cash values for the same point scores for people with different types of disability. Some RASs allocate zero points for responses which could indicate needs which are legally eligible for social care services. If care planning was done by virtue of the RAS alone those local authorities might well be failing to discharge their community care obligations. Some RASs are based on estimates for the local unit cost of care services which may not be accurate for users with certain kinds of needs. In short RASs are not neutral, they are predicated on a set of assumptions about how much it will cost to discharge a local authority’s community care obligation for users. It is vital that the public are able to scrutinize and, if necessary, contest these assumptions if they are unfair or unfounded.

There are also legal reasons – not directly related to the FOIA – why it may be important for local authorities to disclose the workings of their RAS. In a series of court cases, local authority care service users have challenged the value of personal budgets determined by a RAS as being insufficient to meet their eligible care needs. In the case R (Savva) v Royal Borough of Kensington and Chelsea[5] the Court of Appeal stated:

In the present case, the Deputy Judge concluded that fairness required the provision of reasons. He emphasised the consistent theme in the guidance emanating from the Department of Health and the Association of Directors of Social Services – the need for transparency in the decision-making process. In my judgment, he was right to do so. When a local authority converts an established right – the provision of services to meet an assessed eligible need – into a sum of money, the recipient is entitled to be told how the sum has been calculated… If a local authority were entitled to notify a bald figure without any explanation, the recipient would have no means of satisfying himself or herself that it was properly calculated. As the guidance from the Association of Directors of Social Services puts it, explanations of decisions “make it possible for people and families to challenge these decisions”. Or, to put it the other way round, an absence of explanations may make it impossible to mount such a challenge, whether by way of complaint or by way of litigation. [20]

In many cases, the provision of adequate reasons could be achieved with reasonable brevity… In the course of these proceedings it seems to have been suggested on behalf of Mrs Savva that the provision of adequate reasons would extend to every decision having to include an explanation of the Council’s RAS. That suggestion goes too far. Recipients and their advisers are entitled to know about the RAS but, as the Association’s guidance recommends, this can be achieved by publishing the RAS on the Council’s website in a user-friendly format. [21]

In Savva it was held that the local authority had to provide reasons for the value of a personal budget, but as you can see from paragraph 21, the court presumed that the RAS would already be published on the Council’s website. Even if these public law issues raised in Savva are not within the jurisdiction of the Information Commissioner, I would draw his attention to the issues of fairness raised in this judgment. The kinds of explanations offered in the document entitled ‘A summary explanation Of RAS tool – as at June 2011’ which Croydon provided me with initially in response to my request do not offer any detailed explanations of how a particular value has been arrived at. Without information about the algorithm, a person in receipt of a personal budget will have little more than a ‘bald figure’ to work with, and vague assurances that the RAS has been developed ‘iteratively’ or that it allocates resources ‘patterns and profiles of need that typically have resource implications in terms of meeting eligible need’. These do not offer an effective basis to challenge personal budget values on the basis that the presumptions the RAS was built upon were incorrect, unreasonable or discriminatory.

In my view it is in the public interest that Croydon disclose the algorithm underpinning how their RAS works. Disclosure would be in the interests of fairness to those affected by use of the RAS to determine their personal budget, and it is also in the wider public interest that we know the principles and assumptions Croydon apply in allocating public monies. Croydon Council are first and foremost a public authority, accountable to the public through democratic processes and laws like the FOIA. Their commercial interests are secondary to this function, and in no way essential to how they serve the public in ensuring resources are allocated fairly and their community care duties are discharged efficiently and effectively. I would add that should Croydon successfully ‘commercialise’ their RAS tool, this would further obscure how other public authorities who purchase their model allocate their own resources. To permit Croydon to refuse to disclose their algorithm on commercial grounds would have far wider repercussions for other local authorities looking towards purchasing or developing commercial RASs. This would lead to the unfairness and unaccountability that comes with refusal to disclose the inner workings of these systems.

[4] The other was Hackney Council, who were unable to disclose the RAS because they had purchased it from a private software supplier, and were themselves unaware of the algorithm they were using to distribute resources.

[5] [2010] EWCA Civ 1209

Of course, now I’ve spotted all the typos in that letter We shall how it goes – will keep you posted. If the ICO holds that Croydon must disclose its RAS in the public interest, I wonder what that means in the longer term for private companies selling non-disclosable RASs…

2 thoughts on “Hi Ho, Hi Ho, off to the ICO we go… (more on RASs and transparency)”

Be interested in the outcome our LA is fairly open about the RAS but still has its faults cutting the possible award by 70% if family live with the service user but also by 40% if they go in to provide care. So far personal budgets for adults mental health have been a complete nightmare as we have switched from service level agreements

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The Small Places blog is written by Lucy Series, you can read more about her and the blog on the 'About' page.

Blogs, including this blog, should never be relied upon as a source of legal advice. They may be out of date, inapplicable to your circumstances, or just plain wrong. If you need to find a solicitor, you could try the Law Society's find a solicitor webpage. The Mental Health Lawyers Association also list solicitors who do Court of Protection work. Some members of the Bar Pro Bono Unit do Court of Protection work.

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